Work in progress

On January 13, the Libyan American Public Affairs Council in association with the Atlantic Council hosted the ‘Libyan Draft Constitution Analysis and Review Conference.’ The first session included conversations on religion and sharia and mechanisms for enforcement of fundamental rights in the most current draft of the constitution. The second session explored the potential relationship between the president, parliament, and the rest of government as stated in the constitution.

Mohamed Benruwin, one of the drafters of the new Libyan Constitution and professor at Texas A&M International University, Nathan Brown, a professor at George Washington University, and Zaid Al-Ali, a professor at Princeton University, contributed to the first panel.

Benruwin kicked off the discussion, noting that Islam will be the official religion of the Libyan state and that sharia will be the source of legislation, as stated in Article 7. Benruwin described Libya’s dream: a state based on unity, openness, independence, and respect. He also listed a few challenges: constitutionmaking is a road that Libya has never embarked upon, the polarization of groups within Libya, and the difficult decision of choosing the delegates who would write the final constitutional draft. Benruwin’s goals are to ensure a checks and balances and to decentralize government in order to make the citizens more directly involved in political affairs. He aims to answer how the role of sharia will play out in the new Libyan state. He believes the supremacy of sharia has a much more complicated meaning than the negative connotation imposed by the Western definition.

Brown analyzed what exactly having Islam as the state religion and sharia would mean for Libya. Islam as the state religion symbolizes its importance in the region. The Libyan constitutional drafters are learning from the errors of the past and adjusting to include how sharia will be enforced, though what category of sharia would be enforced has been left out of the constitutional process thus far. Brown deconstructed a few articles of the constitutional draft to show how unique this particular document is. For instance, Article 106 provides a constitutional court where both political scientists and specialists in Islamic sharia could participate. Brown advised that Libyans will have to be wary of the political context, of who exactly will be in charge of these courts, and of who will implement sharia.

Ali, who devotes his time speaking with constitutional drafters, recommended improving the draft framework. He is concerned with rights, which would only be guaranteed by the state, not guaranteed absolutely. He also addressed the freedom of association clause, which gives the right to form civil society organizations that are both “transparent” and “independent.” Ali believes that organizations should not have to be transparent, especially if it involves family groups in the privacy of their homes. Under this constitutional draft, the state would have the right to shut down these organizations; Ali recommended this part be removed from the draft.

The second panel on the relationships of different governing bodies included Benruwin and Sanford Levinson, Harvard Law School professor. Levinson stated that separation of powers between two governing bodies creates two competitors to speak for the people. Libya would have to face the issues of pluralism and multiple political parties, which to Benruwin is a “recipe for disaster and instability.” He fears a presidential system in a nation where the people are deeply divided. How to get these people to trust each other and compromise is a huge task Libya has to take on.

Benruwin disagreed with Levinson, adamantly holding to his belief that the separation of powers is crucial to Libya’s success. To Benruwin, nations are all about compromises and full of people who disagree with one another. He wants the president and a parliament to check each other and for both to have enumerated powers. Levinson then mentioned the frequent use of the words “autonomy” and “independence” in this draft. He posed a question for the constitutional drafters: how much of these does one really want and how are these words defined? Answering these questions is necessary in order to create a successful Libyan state.